Lasting Powers of Attorney Knowledge & Resources

Lasting powers of attorney (LPAs) are relevant to all adults of any age. They have become increasingly important as the risk of mental incapacity grows through a combination of illness, accident or just old age. A person who loses capacity at a young age could have many years when an LPA is a central part of making decisions in their best interests.

The property and financial affairs LPA deals with finances which include banks, stockbrokers and your property. The health and welfare LPA deals with medical needs such as medication as well as life sustaining treatment.

An attorney is the person you choose to have the power to make difficult decisions about your finances and/or health and welfare should you not be able to because you lack mental capacity.

An attorney should be someone trusted, usually a relative or friend or a professional person.

Your loved ones will have to apply to the Court of Protection for a deputyship order to obtain permission to access your funds no access to your funds to support your future care no right to make decisions about your health and welfare and therefore your own wishes may be ignored.

Your attorney (often family or friends) will have immediate access to your funds to support your care. They will have the right to make decisions about your health and welfare and ensure your wishes are carried out. Having an LPA also means they won’t have to apply to the Court of Protection which can be stressful, time consuming and expensive process.

To validate an LPA a certificate needs to be completed by an independent third party, the certificate provider. This confirms that they understand the purpose of the LPA and that it wasn’t created fraudulently or under pressure. Without this the LPA cannot be registered.

A named person is someone not chosen as an attorney but who is notified that the LPA has been applied for and registered. This is not a compulsory requirement.

Yes, there are many things can be included in an LPA. In order to include the correct wording, it is important to seek professional advice.

Attorneys and named persons are notified when the LPA is registered. If an LPA is in use, financial institutions (for example banks and accountants) will need to be informed and perhaps medical advisers.

An LPA needs to be registered with the Office of the Public Guardian using their formal registration procedure.

If you lack mental capacity, then you are not able to give instructions or manage your daily needs.

Mental incapacity is established by a medical professional.

A property and financial LPA can take effect whilst you have mental capacity and when you lose it. A health and welfare LPA can only take effect once you have lost mental capacity.

Yes, LPAs can be changed or cancelled at anytime, as long as you have mental capacity.

There are many responsibilities for an attorney which differ for each individual. It is important that an attorney is aware of their responsibilities and should take legal advice to ensure they are carrying out there important role correctly.

The registration of an LPA can be objected if made within the time constraints and on appropriate grounds set by the Office of the Public Guardian.

As we live longer lives, incapacity issues will continue to increase and accidents do happen. Incapacity issues can affect the young as well as the elderly. By making a Lasting Power of Attorney, you are taking control of your own affairs and ensuring that should you lose capacity, there are people in place who can assume responsibility for managing your affairs.

The term ‘next of kin’ is a commonly used term and there is a presumption that the person whom you think of as your next of kin has certain rights. In fact, a next of kin has no more legal rights than a stranger. Health professionals will always consult with the people closest to you. However, health professionals are not bound to follow their decisions. The only way to ensure that your health wishes are followed is to make a Health & Welfare Lasting Power of Attorney whereby health professionals are then legally obliged to follow your attorneys’ instructions.

Lasting Powers of Attorney are powerful documents and you should give a great deal of thought to who you appoint as your attorney. It is important that you trust your attorneys to act on their own in your best interests. If you do, then you should feel confident in appointing them. If not, then maybe that person is not the person that you should appoint.

If your Enduring Power of Attorney was signed and witnessed correctly by you and your attorneys before 1 October 2007 then it is still valid and can be used by your attorneys to deal with your property and financial affairs. If not, then the Enduring Power of Attorney is not valid and you should consider making a Lasting Power of Attorney. Even if you have a valid Enduring Power of Attorney, you might still want to consider preparing a Health & Welfare Lasting Power of Attorney.

Your attorneys are however, under a duty to register your Enduring Power of Attorney with the Office of the Public Guardian should you lose capacity in order to continue to use it.

Instead you could grant an Ordinary Power of Attorney in which you can delegate your general authority to an attorney to act on your behalf for as long as you wish, provided you retain capacity or a specific Power of Attorney authorising your attorney to act in relation to one specific matter such as a share sale or purchase. An Ordinary Power of Attorney is only valid for as long as you authorise its use and cannot be used if you were to lose capacity.